Wednesday, April 25, 2012

Continuing its de facto policy of virtually never disciplining prosecutors for alleged on-the-job misconduct, the state bar dismissed a complaint against Williamson County District Attorney John Bradley this week over the Michael Morton case, reports the Austin Statesman: The state bar's board of disciplinary appeals "reviewed the complaint as filed, taking no additional
information, and determined that the accusations did not allege any
violations of the Texas Disciplinary Rules of Professional Conduct, the
ethics rules for lawyers, the letter said." Bradley had been accused of improperly delaying DNA testing and fighting to conceal exculpatory evidence being turned over to Morton's legal team.

Now the focus in the Morton case shifts to District Judge Ken Anderson. The court of inquiry to measure his culpability will take place September 11 in Georgetown: Be there or be square!

One of the problems with the state bar's reticence to
discipline prosecutors is that even when complaints are dismissed, that
does little to reassure the public that all is well. It's hard at this point to believe the bar would enforce rules for prosecutors in any event. Maybe it's true no violations occurred, but it's difficult for the public to have confidence in that judgment.

The dismissal, though, doesn't necessarily mean scrutiny has ended for Mr. Bradley. Your News Now Austin reports that another complaint has been filed against him alleging "the actions of Bradley and others on the state's Forensic Science
Commission, resulted in a failure to properly investigate his previous
complaints of negligence and misconduct at the Dallas County crime lab,
Southwestern Institute of Forensic Science."

Bradley
is now in permanent "no comment" mode. For the past month, he has
failed to comment when pressed by the media to explain his false statements against the Cedar Park PoliceAssociation and other issues surrounding his application to
become board certified in criminal appellate law. Since Bradley feels
he is not accountable to the public and provide answers to questions
regarding misconduct, on May 29th, the public can hold him accountable
at the ballot box. Until then, expect more dodgeball.

As the Watchdog notes, there's a much better chance voters will hold Bradley accountable than the state bar. Time will tell.

22 comments:

Anonymous
said...

Granted, Bradley's opposition to the DNA testing turned into a PR disaster for him and regrettably delayed Morton's release from prison. With that said, what ethical rules are you contending he violated? Are you suggesting that prosecutors should just unilaterally agree to any post-conviction motion for DNA testing? There is a statutory procedure for inmates to petition the court for DNA testing following a conviction. Whether such testing is granted is ultimately determined by a judge. In this instance, there has been no allegation that Bradley knew that Morton was innocent and was deliberately attempting to prolong his release. Even the motion that Morton's lawyers filed requesting the Anderson Court of Inquiry did not allege that Bradley had committed any misconduct. It appears that Bradley zealously sought to uphold a conviction that he genuinely believed to be valid. If that is unethical, then every decision by a prosecutor to take a case to trial which ultimately results in an aquittal will also be unethical.

If you think the Bar Association blew it by dismissing the grievance against Bradley, why don't you man up and identify which ethical provisions you claim he violated. There's no doubt that Bradley is a controversial and polarizing prosecutor. It's equally obvious that you don't like him. But if you can't identify where the Bar Association legally erred in its finding, then Bradley's case is absolutely irrelevant to your claim that the State Bar won't hold prosecutors for misconduct. Incidentally, maybe it was just a poor choice of words on your part, but surely you don't contend that prosecutors should be sanctioned for "alleged" misconduct. Shouldn't they only be sanctioned for PROVEN misonduct?

At the end of the day, Bradley ultimately be held accountable for his actions by the voters of Williamson County. If they believe his opposition to Morton's post-conviction DNA testing was unwise, ill-informed or an unjustified expenditure of taxpayer resources, then they can express their displeasure at the polls.

I've noticed in the past that there are times when you let your personal animosity cloud your objectivity. You've done it with Sharon Keller. You've done in with your recent encounter with the Austin P.D.. And now you're doing it with Bradley.

Tone aside, Anonymous makes some fair arguments that point to a foundational and often ignored distinction in all the talk about prosecutorial misconduct and oversight/accountability. In order to perform oversight or achieve accountability (and the appropriate description can and should be debated), we've got to agree on what constitutes error or misconduct. I have not read the supporting documentation in either the recently dismissed or the recently filed grievances, but my understanding of the general allegations is that neither alleges conduct that is *clearly* proscribed by the ethical rules. In the former case, before testing was actually conducted there was (arguably) no evidence that tended to negate guilt; in the latter case, it's not clear that Bradley was acting as a prosecutor or even as a lawyer in the context of the TFSC work that's the subject of the complaint. Maybe we'd be better off with an attorney oversight system that issues public guidance about how close a lawyer's conduct fell to the ethical line, or that counsels attorneys to take care not to make reasonable mistakes. But that's not what we have. Instead, we have a "discipline" system that as a functional matter only sanctions clear - and probably knowing/intentional - violations of rules. And, maybe we'd be better off if Rule 3.09 or some other ethical rule provided more stringent and bright line guidance to prosecutors in the context of potentially exculpatory forensic evidence. Instead, we have a pretty clunky standard keyed to the pretty clunky Brady rule. Both of these issues - what oversight system, and what substantive rules - should be on the table for the legislature. In the meantime, these grievances do serve the important function of opening public debate on whether certain conduct is *right*, *good*, and what the people want from their elected officials.

8:52, why don't you "man up" and use your name if you're going to besmirch others? At least I don't hide behind anonymity like a child behind Mommy's skirt. Grow a pair.

Also, don't put words in my mouth, but instead try to argue with what's written. E.g., I did not say the bar was right or wrong (merely discredited), so I feel no need to defend positions that you've projected but I've never taken.

A couple of additional points: First, I have never claimed "objectivity" and in fact despise the concept as applied to journalism. What you're reading is unabashed opinion writing. If you disagree with my opinion, so be it. The comment section is open, or you can always start your own blog.

Second, the point of this post wasn't to assess Bradley's culpability - I have not reviewed the documentation, have no means to do that and this post didn't pretend to. Instead I said that because the bar virtually NEVER disciplines prosecutors, "even when complaints are dismissed, that does little to reassure the public that all is well." Bradley may well not have engaged in conduct proscribed by the rules, in other words, but because even those who do aren't disciplined, the state bar's say-so isn't in and of itself reassuring.

I do disagree there's been "no allegation that Bradley knew that Morton was innocent and was deliberately attempting to prolong his release." He opposed an open records request that revealed exculpatory information as well as the unsealing of the investigative file. His office had access to that information and fought to conceal it rather than disclose it, delaying Michael Morton's release by years. The reason the court of inquiry didn't accuse him in that regard is that he threw Ken Anderson under the bus. But just like a snitch who rolls on his alleged accomplice, those looking in from the outside may wonder about the motives that led to the outcome, and such speculation IMO is very much invited here.

Beyond that, Jennifer's views more or less reflect mine: The standards for what constitute misconduct among prosecutors are "klunky" and fuzzy, and both prosecutors and the state bar are more than comfortable leaving it that way. The Lege should beef up those strictures so the process has some credibility.

Doesn't the rules require a prosecutor to turn over exculpatory evidence, even after a conviction? I think they do...so, there is you're ethical violation. As soon as Bradley became aware that there was exculpatory evidence that had not been turned over, he had a duty to do so. Failing to do so was clearly an ethical violation for which he should have been sanctioned.

Furthermore, state law requires a prosecutor to do just, not just obtain and maintain convictions. As soon as Bradley learned of evidence that may have shown an innocent man was convicted, he had a duty to take actions to see that justice was accomplished. Too many prosecutors believe their job is to obtain as many convictions as possible and always fight to maintain and conviction, even in the face of evidence showing innocence. As long as the bar gives them a pass... It's time to hold prosecutors accountable.

How exactly is the bar "discredited" if there was no articulable ethical violation? Go ahead and admit it, you want Bradley sanctioned because you think he's an asshole. The problem with that line of reasoning is that if it was an ethical violation to be an asshole, every lawyer in Texas would probably be subject to being sanctioned (Granted, some might argue that's not necessarily a bad thing, but that's beside the point).

Just as not every bad act by an ordinary citizen constitutes a violation of a penal law, not every bad act by a lawyer constitutes a violation of the disciplinary rules. In any criminal or civil trial, it's pretty much a given a lawyer is going to piss off at least half of the parties involved. That's just the nature of the system. What you're basically suggesting in your OP/ED (happy now?) is that the bar should have went after Bradley--disciplinary rules be damned. You wouldn't think that's appropriate if a prosecutor did that to someone in a criminal case, would you? Why should it be any different for the bar as it relates to any charges against Bradley? The grievance allegation either alleges a violation or it doesn't.

@10:49, the DNA evidence didn't become exculpatory until it was tested. As to the other Brady material, there seems at least be some argument as to what was disclosed and when it was disclosed. Hence, the whole Court of Inquiry investigation of Ken Anderson. I know y'all really want to tar and feather Bradley for the possible misdeeds of his predecessor. The fact of the matter is, however, that there are some major distinctions in their relative levels of culpability in this whole sad affair.

To 10:52, re: " It appears that Bradley zealously sought to uphold a conviction that he genuinely believed to be valid. If that is unethical, then every decision by a prosecutor to take a case to trial which ultimately results in an aquittal will also be unethical. "

Remember, prosecutors are sworn to seek justice, not to be zealous advocates. Any trial decision based on zealotry and not justice is, in fact, an unethical decision.

11:14, the bar is "discredited" on this IMO because it never sanctions prosecutors even when judges find they've engaged in misconduct. That statement referred not to the instant case but instead assessed their record over time.

To the rest: Once again, instead of addressing what I actually wrote, you want to argue with a straw man of your own making: that I "want Bradley sanctioned because [I] think he's an asshole." Never said it. It's not true. Just because you project nonsensical views on me doesn't mean I have to defend every ridiculous thing you want to attribute my way.

Your comment @10:49 is equally misleading and obfuscates what was argued - whether intentionally or out of ignorance I cannot say. True, nobody knew the outcome of DNA testing till it happened, but that's not what was argued! The exculpatory evidence Bradley DID know about was the info divulged (over his office's objections) under open records that it turned out was never shared with the judge. His office by law had to review that information and forward samples to the Attorney General, so we know they saw it, they just fought disclosing it for as long as possible.

Next time, try actually quoting what is said and arguing against it specifically. This habit you have of making up fake positions, attributing them to those you dislike, then arguing with yourself instead of their actual views really doesn't contribute much to constructive dialogue.

Okay...I'm lost. If you're not contending that Bradley SHOULD have been sanctioned, or that the bar made a mistake by NOT sanctioning Bradley, then how is this case relevant to what the bar did or didn't do in other instances. How would this case be illustrative of any "de facto" policy, as you put it, one way or the other? Admittedly, I'm not the brightest guy in the world, but I'm confused as to your logic.

My knowledge of what went on in Morton is limited to what I've read in the media and from the recent 60 Minutes piece. But isn't Anderson contending that (with the exception of the DNA stuff) the exculpatory evidence WAS disclosed or was otherwise already known to the defense? I realize this is a point of disagreement among the parties, but the point I'm getting to is this: Bradley was not there at the time. All he knew was what was in the file and what was told to him by the prosecutor who tried the case regarding the disclosure of Brady evidence. At what point are you claiming that he should have stopped defending what must have appeared to him to be a valid conviction and started agreeing to everything the defense was requesting?

Finally, a point on which we can agree. The commeent in the post (as opposed to the made up one ringing in your head that you want to argue against) was that, because the state bar does not discipline prosecutors even when there is misconduct found - e.g. when judges find Brady violations on appeal - when the public is told a complaint is dismissed "it's difficult for the public to have confidence in that judgment." The point is because they NEVER discipline prosecutors, the dismissal has less meaning as a signal to the public (or anyone without detailed knowledge of the facts, which includes both you and me) than it would if they sometimes did enforce the rules. I'm sick of repeating myself, so if you don't understand by now, it's on you.

Otherwise, as I understand it Anderson contends he is sure he would have disclosed it but says it was too long ago to recall details. And since what he actually DID disclose (as revealed in the unsealed file) did not include the exculpatory material, that's a pretty thin reed.

As for this BS question - "At what point are you claiming that he should have stopped defending what must have appeared to him to be a valid conviction and started agreeing to everything the defense was requesting?" - you're back to your red herrings. Nobody said that so you're arguing with yourself. However, to get to the heart of the (BS) question, when Bradley's office reviewed the material asked for under open records and realized it was potentially exculpatory, IMO THAT'S when they should have turned the evidence over. Please carefully note the difference between arguing they should turn over exculpatory evidence, which was their duty, and your assertion that I would have prosecutors "agreeing to everything the defense was requesting." Do I need to use smaller words?

You are giving Bradley too much credit. Bradley has made comments elsewhere that indicate he thinks he has a duty to fight to uphold any conviction, valid or not. He advocated destroying DNA evidence after conviction. He doesn't care about the validity or invalidity of a conviction, or in other words, guilt or innocence. God himself could have told Bradley Morton was innocent and he still would have fought the DNA testing. His comments indicate that he has some skewed thinking that requires him to defend the system at all costs.

Now that I think about it, fighting the DNA testing could be construed as a violation of his duty to do justice. Think about it, what does the testing hurt. If the person is guilty the testing will confirm that justice was done. Nothing wrong with justice being more certain is there? Yet, in this case, he delayed justice for six years. In fighting the testing he was not attempting to do justice but he was attempting to protect the system. If he was convinced of Morton's guilt there would be no reason for him to fight the testing, would there? The only reason he fought it was because he was afraid Morton was innocent. So, yes, I think that was an ethics violation. Prosecutors have no letigimate reason to fight DNA testing. I think the legislature recognized that when they changed the law.

You are giving Bradley too much credit. Bradley has made comments elsewhere that indicate he thinks he has a duty to fight to uphold any conviction, valid or not. He advocated destroying DNA evidence after conviction. He doesn't care about the validity or invalidity of a conviction, or in other words, guilt or innocence. God himself could have told Bradley Morton was innocent and he still would have fought the DNA testing. His comments indicate that he has some skewed thinking that requires him to defend the system at all costs.

Now that I think about it, fighting the DNA testing could be construed as a violation of his duty to do justice. Think about it, what does the testing hurt. If the person is guilty the testing will confirm that justice was done. Nothing wrong with justice being more certain is there? Yet, in this case, he delayed justice for six years. In fighting the testing he was not attempting to do justice but he was attempting to protect the system. If he was convinced of Morton's guilt there would be no reason for him to fight the testing, would there? The only reason he fought it was because he was afraid Morton was innocent. So, yes, I think that was an ethics violation. Prosecutors have no letigimate reason to fight DNA testing. I think the legislature recognized that when they changed the law.

now me i LOVE it when they pull stunts like this. The american public has been alseep at the switch for DECADES...but it is slowly waking up to discover that not only have the people they put in charge nothing but a big bunch of criminals. but they are STUPID ones to boot that have basically taken the greatest country on earth and destroyed it! and the rights that make it great!

All criminal stupidity like this does is bring that day and very old but reliable cleanup method comes back into general use..

Two points- one probably contentious. Anon 8:52, is this Bradley's son again trying to wage a stealth campaign to counter the allegations against dad? My daughter and I, who have vested interests in all this, have uncovered this son defending the father on several blogs, always anonymously. If so, I agree with Grits- grow a spine and speak your piece without hiding behind "anon".

Rodsmith makes a good point. Americans have been criminally lazy for decades in the matter of exercising the responsibility of the electorate. Remember that old chestnut about how every freedom comes with a responsibility? Americans for decades have not bothered to stay informed on what those elected folks are doing, who's doing what, and then using their right to vote. No, they just gripe after the fact. As bad a mess as politicians have made of the country - on both sides, but IMO largely the radical right - the American people deserve a great deal of the blame for being absentee landlords and leaving these characters unfettered by concern with a public reaction.

State Bar- what a joke! Does anyone at this point still believe in our "justice" system?? (OK, 3rd point. Sorry)

"A prosecutor's role is to seek justice," Texas D.A. John Bradley (aka "Anonymous"). Not to oppose every request for DNA testing, and not to uphold every previous decision by your friends and colleagues.

My son tried to file a grievance it was taken and thrown away ,so I called in complaint no follow through ofcoarse ,today another call ,man on other end says I never reported ,over and over I said I have a cell phone ,I have the time ,date and even the duration the phone call took , it will never change ,

Speaking as an occasional anonymous commenter, the encouragement to not comment anonymously would be much more enticing if:

1) the readership of this blog didn't include individuals, such as rodsmith, who feel completely comfortable advocating lynching as a desirable form of political and social expression,

and

2) the blog owner, Phillip Baker and the rest of the readership weren't so accepting of rodsmith's advocacy of lynching that they have absolutely nothing negative to say in response to rodsmith.

So, there is at least the appearance that threats of lynching have fairly widespread support around here. Given that appearance, I will continue to comment anonymously, and will feel quite okay about doing so.

Let me get this straight. Rodsmith's point is a good one. But Rodsmith's point was made to advocate lynching as a legitimate and justifiable act. And you have nothing negative to say regarding advocacy of lynching. Not do you have nothing negative to say, but the blog owner, no shrinking violet in giving his opinions by the way, also has nothing negative to say.

And then you find fault with people choosing to remain anonymous? Are you nuts? Or are you simply accepting of threats of terrorism, as long as the targets are acceptable to you??

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